New Jersey’s Whistleblower Law Prohibits Retaliatory Transfer to Less Desirable Job

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit. He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad. Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

The trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits. Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case. Det. Scozzafava appealed.

The Appellate Division reversed. It explained that CEPA defines retaliation to include not only being fired, suspended or demoted, but also “other adverse employment action taken against an employee in the terms and conditions of employment.”

The appellate court further recognized that, contrary to the trial court’s finding, a jury could find that Det. Scozzafava’s transfer was not merely a lateral transfer but rather a demeaning transfer. For example, Det. Scozzafava’s experience prior to joining Somerset County had been in the State Police’s Crime Scene Investigation Unit for 12 years, and there was evidence that he accepted the job with Somerset County with the understanding that he would continue in that role. Further, Det. Scozzafa had been in Somerset County’s Crime Scene Investigation Unit for nearly eight years before the County transferred him to the fugitive squad. It observed that Det. Scozzafava was unable to use the expertise he had gained over the previous 20 years, or to continue to develop those skills, in the fugitive unit.

The Appellate Division further noted that Det. Scozzafava’s lieutenant had explained the reason for the transfer by saying: “everybody does time in the penalty box.” Likewise, the court recognized that Det. Scozzafava was the only detective transferred out of the forensic unit over the past nine years. Further, it noted that Det. Scozzafava has now been in the fugitive squad for 3 years, making it clear it was more than a temporary transfer.

Moreover, the Appellate Division indicated that Det. Scozzafava has lost overtime pay opportunities as a result of the transfer, as demonstrated by the thousands of dollars of overtime pay he received per year prior to the transfer but no longer receives in his new role. It explained that the New Jersey Supreme Court has recognized that “any reduction in an employee’s compensation,” including a lost opportunity to earn more overtime pay, is enough to constitute an adverse employment action.

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